Back in 2014, President Obama drew criticism from opponents for his pen-and-phone strategy to pursue his agenda in the face of congressional deadlock. The “pen” part of his strategy signaled a renewed reliance on direct executive actions—like Executive Orders and memoranda—to secure policy outcomes that could not be achieved through legislation by a divided Congress.…

Modern Supreme Court constitutional interpretation increasingly looks to history. Second Amendment jurisprudence post-Bruen and Rahimi looks to early American analogs for the permissibility of firearms restrictions. Our substantive due process test as articulated in Washington v. Glucksberg looks, in part, to whether a right is “deeply rooted in this Nation’s history and tradition.” Similarly, the…

Asking for a silver lining in the Supreme Court’s FCC v. Consumers’ Research nondelegation opinion may be too much. Perhaps, however, an optimist can find threads of reasons to hope for a better outcome in the future. Last November the Supreme Court granted certiorari in FCC v. Consumers’ Research. Many court-watchers were hopeful the Supreme…

During the COVID-19 pandemic, many individuals faced an ultimatum: comply with a vaccine mandate or forfeit your employment. These mandates coerced individuals into relinquishing their bodily integrity as a condition of keeping their jobs. In so doing, these mandates were not only an assault to personal liberty, but, when imposed by government employers, were classic…

The saga of the SEC’s Consolidated Audit Trail (CAT) featured a notable milestone on July 25 when the 11th Circuit Court of Appeals delivered a blow against the CAT as it currently operates. A three judge-panel unanimously held that the legal mechanism adopted in 2023 to fund the CAT violates the Administrative Procedure Act. In…

If at first you don’t succeed, try try try . . . [insert 13 more tries here] again. This is the story with the Regulations from the Executive in Need of Scrutiny Act of 2025 (“REINS Act”). A piece of legislation that has been—in one form or another—reintroduced in each new Congress as far back…